The Hornsea One Offshore Wind Farm Order 2014

PART 10 For the protection of C.GEN Killingholme limited

91.—(1) The following provisions apply to govern the relationship between the undertaker and C.GEN unless otherwise agreed in writing between the undertaker and C.GEN. For the avoidance of doubt, paragraphs 92, 93(1) and 106(1) of the following provisions shall apply only in respect of such parts of the grid connection land in which C.GEN have a land interest or have powers under any order or statutory instrument to acquire such an interest (whenever granted).

(2) In this Part of this Schedule—

“approving party” means the party from whom an approval should be, has been or should have been obtained under the terms of this Part, and shall be the undertaker in the case of specified work by C.GEN, and C.GEN in the case of specified work by the undertaker;

“C.GEN” means C.GEN Killingholme Limited (Company number 06422434), whose principal office is at 130 Shaftesbury Avenue, London W1D 5EU;

“C.GEN relevant land” means the area of land shown coloured yellow on the plan;

“construction” includes execution, placing, altering, replacing, reconstruction, relaying, maintenance, extensions, enlargement and removal and “construct” and “constructed” are construed accordingly;

“crossing zones” means those areas of land shown coloured green on the plan;

“dominant land” means the Order land shown numbered 404 on the land plans;

“drainage ditch” means the ditch shown by a black line marked ‘Drain’ on the plan;

“Hornsea Project Substation Site” means the substation site shown outlined in pink on the plan;

“grid connection land” means the C.GEN relevant land, the thermal buffer zone and the crossing zones;

“the plan” means the plan entitled the C.GEN Protective Provisions plan and certified as the C.GEN protective provisions plan by the Secretary of State for the purposes of this Part of this Schedule;

“plans” includes sections, drawings, specifications, designs, design data, software, soil reports, calculations, descriptions (including descriptions of methods of construction), staging proposals, programmes and details of the extent, timing and duration of any proposed occupation of the relevant land;

“promoting party” means the party who is seeking, has sought or should have sought an approval under the terms of this Part of this Schedule and shall be the undertaker in the case of specified work by the undertaker, and C.GEN in the case of specified work by C.GEN;

“pylon land” means the area of land shown cross-hatched in black on the plan;

“servient land” means any pond, ponds or any watercourse on land under the ownership of C.GEN as at the date of this Order;

“specified work” means so much of any work or operation by the undertaker or C.GEN as is in, on, under or over the grid connection land; and

“thermal buffer zone” means the area of land shown coloured red on the plan.

92.  The undertaker must not under the powers of the Order acquire—

(a) new rights over the C.GEN relevant land; or

(b) new rights over the thermal buffer zone, except for the purposes of access and maintenance,

without the consent of C.GEN, such consent not to be unreasonably withheld or delayed but which may be given subject to reasonable conditions.

93.—(1) Subject to sub-paragraph (3), any specified work must be constructed—

(a) without unreasonable delay in accordance with the plans approved or settled under this Part of this Schedule; and

(b) to the reasonable satisfaction of the approving party.

(2) If any part of the specified work is constructed otherwise than in accordance with the requirements of this Part of this Schedule, the approving party may by notice in writing require the promoting party at the promoting party’s own expense to comply with the requirements of this Part of this Schedule or (if the promoting party so elects and the approving party in writing consents, such consent not to be unreasonably withheld or delayed) to remove, alter or pull down the work and, where removal is required, to restore the site to its former condition to such extent and within such limits as the approving party reasonably requires.

(3) Subject to sub-paragraph (4), if within a reasonable period, being not less than 28 days from the date when a notice under sub-paragraph (2) is served upon the promoting party, it has failed to begin taking steps to comply with the requirements of the notice and subsequently to make reasonably expeditious progress towards their implementation, the approving party may execute the works specified in the notice and any expenditure incurred by it in so doing is recoverable from the promoting party.

(4) In the event of any dispute as to whether sub-paragraph (2) is properly applicable to any work in respect of which notice has been served under that sub-paragraph, or as to the reasonableness of any requirement of such a notice, the approving party must not except in emergency exercise the powers conferred by sub-paragraph (3) until the dispute has been finally determined.

94.  The promoting party must give to the approving party not less than 14 days’ written notice of its intention to commence the construction of the specified works and, not more than 14 days after completion of such construction, must give the approving party written notice of such completion.

95.  The promoting party must at all reasonable times during construction of the specified works and thereafter allow the approving party, its servants and agents, access to such work and all reasonable facilities for inspection of any such work.

96.—(1) After the purpose of any temporary works has been accomplished the promoting party must with all reasonable dispatch, or after a reasonable period of notice in writing from the approving party requiring the promoting party to do so, remove any such temporary works or any materials relating thereto which may have been placed in, on, under or over the grid connection land by or on behalf of the promoting party.

(2) If the promoting party fails to do so within a reasonable period after receiving such notice, the approving party may remove the same and may recover the reasonable costs of doing so from the promoting party.

97.—(1) If any damage to the grid connection land or any apparatus of any approving party upon such land or any interference or obstruction is caused by the carrying out of, or in consequence of the construction of a specified work, the promoting party must, notwithstanding any approval, make good such damage to the reasonable satisfaction of the approving party and must pay to the approving party all reasonable expenses to which the approving party may be put and compensation for any loss which it may sustain by reason of any such damage, interference or obstruction.

(2) If the promoting party refuses or fails to do so, the approving party may cause the work to be done and may recover the reasonable cost of doing so from the promoting party.

98.—(1) Without prejudice to the other provisions of this Part of this Schedule, the promoting party is to be responsible for, and must make good to the approving party, all losses, costs, charges, damages and expenses however caused (including a reasonable and proper proportion of the overhead charges of the approving party) which may reasonably be incurred by or occasioned to the approving party by reason of or arising from or in connection with—

(a) the perusal of plans and the inspection of the specified works by the approving party or its duly authorised representative;

(b) the construction or failure of the specified works, or the undertaking by the approving party of works or measures to prevent or remedy damage to any property of the approving party arising from such construction or failure;

(c) any act or omission of the promoting party or their servants or agents whilst engaged in the construction of any of the specified works.

(2) The approving party must give to the promoting party notice in writing of any claim or demand for which the promoting party may be liable under this paragraph and no settlement or compromise of any such claim or demand may be made without the consent in writing of the promoting party.

(3) Nothing in this paragraph imposes any liability on the promoting party to the extent that any losses, costs, charges, damages, expenses, claims or demands referred to in sub-paragraph (1) are attributable to negligence on the part of the approving party or of any person in its employ or of its contractors or agents.

99.  The fact that any work or thing has been executed or done with the consent of the approving party and in accordance with any conditions or restrictions prescribed by the approving party or in accordance with any plans approved by the approving party or to its satisfaction or in accordance with any directions or award of any arbitrator, does not relieve the promoting party from any liability under the provisions of this Part of this Schedule.

100.  Any consent or approval of an approving party required under this Part of this Schedule—

(a) must not be unreasonably withheld or delayed; and

(b) may be given subject to reasonable conditions.

101.  Any consent or approval of an approving party required under this Part of this Schedule shall be deemed to have been given if it is neither given nor refused within 42 days beginning with the date on which the application for consent or approval was submitted to the approving party.

102.  Without prejudice to the generality of paragraph 100 of this Part of this Schedule, it shall not be reasonable for an approving party to withhold or delay any consent or approval under this Part of this Schedule in relation to specified work in, on, under, or over the grid connection land solely on the basis of thermal interaction between the circuit and any adjacent circuit, whether existing or proposed, where it has been demonstrated that there will be no material thermal interaction, which shall be deemed to have been demonstrated where the separation between such circuits is 6 metres or more (from the centre line of each circuit).

103.  Without prejudice to the generality of paragraph 100, and in addition to the circumstances described in paragraph 102, it shall not be reasonable for the undertaker or C.GEN to withhold or delay any consent or approval under this Part of this Schedule in relation to specified work in, on, under, or over the crossing zones solely on the basis of thermal interaction where the plans of the specified work submitted under paragraph 93 demonstrate that all reasonable steps have been taken to minimise thermal interaction between the circuit and any other circuit, whether existing or proposed.

104.  With the exception of any duty owed by the approving party to the promoting party expressly provided for in the foregoing provisions of this Part of this Schedule, nothing in this Order is to be construed as imposing upon the approving party, either directly or indirectly, any form of duty or liability to which the approving party would not otherwise be subject which is enforceable by proceedings before any court.

105.  Save as this Part of this Schedule permits, nothing in this Order affects prejudicially any statutory or other rights, powers or privileges vested in, or enjoyed by, the approving party at the commencement of this Order or any title of the approving party in, to or over any lands held or acquired by it.

106.—(1) In the event that the undertaker begins to carry out the specified work before C.GEN and the undertaker requires to alter the course of, modify, or remove any part of the drainage ditch such alteration, modification or removal works must be approved in writing by C.GEN, such approval not to be unreasonably withheld or delayed but may be given subject to reasonable conditions.

(2) In the event that C.GEN begins to carry out the specified work before the undertaker and C.GEN requires to alter the course of, modify, or remove any part of the drainage ditch such alteration, modification or removal works must be approved in writing by the undertaker, such approval not to be unreasonably withheld or delayed but may be given subject to reasonable conditions.

107.  The undertaker must ensure that the rate and/or volume of water discharged from the dominant land onto, over, across or through the servient land will not result in a significant increase in the exercise of the rights of the easement enjoyed by the dominant land on, over, across and through the servient land other than with the prior written approval of C.GEN.

108.  The undertaker must not exercise the powers conferred by article 15 (compulsory acquisition of land) or article 16 (compulsory acquisition of rights) in respect of the Order land shown numbered 408 on the land plans to extinguish any rights that C.GEN has to connect into the North Killingholme National Grid substation.

109.  The provisions of this Part of this Schedule will enure for the benefit of the undertaker, C.GEN and any statutory successor of either which is licensed under section 6 of the 1989 Act and is in occupation or use of the Hornsea Project Substation Site, the grid connection land or any part thereof pursuant to their undertaking.